Ashley Reid-Pascarella v West Bay Management Ltd

• Jurisdiction: Bahamas
• Judge: Darville Gomez, J
• Judgment Date: 23 November 2023
• Docket Number: 2020/CLE/GEN/01025
• Court: Supreme Court (Bahamas)

BETWEEN

Ashley Reid-Pascarella

First Claimant

Jeffrey Pascarella

Second Claimant

and

West Bay Management Limited (D/BA/Sandals Royal Bahamian Spa & Resort Offshore Island)

First Defendant

Sandals Resort International Ltd

Second Defendant

Moral Adderley

Third Defendant

Before:

The Honourable Justice Camille Darville Gomez

2020/CLE/GEN/01025

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Permission to file a Counterclaim pursuant to CPR 18.4 — judgment pending on strike out of the First Defendant's Defence — action not at CMC stage — overriding objective — saving expense — ensuring that the case is dealt with expeditiously

Appearances:

Mr. Carl Bethel, KC for the Plaintiffs

Mr. Marco Turnquest and Ms. Chizelle Cargill for the Defendants

RULING

Darville Gomez, J

1 The First Defendant applied by Notice of Application filed on October 5, 2023 for permission to file a counterclaim against the Claimants; it was supported by and Affidavit of Adrian Whitehead filed on October 4, 2023.

2 The First Defendant submitted in their affidavit in support for leave that the Claimants through their travel agent booked a stay with Sandals Royal Bahamian through Unique Travel Corp (“UTC”), its booking agent. The invoice provided by UTC contained the terms and conditions of Sandals Royal Bahamian which the First Defendant assert were expressly agreed to by the Claimants and the Travel Agent and which govern the relationship between the parties. Specifically, Clause 15 B in summary stated that any claims whatsoever arising from, in connection with or incidental to any personal injury, illness or death that would include any claim whatsoever against Sandals Resorts International Limited shall be litigated solely and exclusively in the Courts of the Country in which the hotel is physically located and governed exclusively by the laws of the Country in which the hotel is physically located and further that the Courts of the Country in which the Resort is physically located shall be the exclusive venue/forum for any proceedings, claims or litigation whatsoever.

3 Further, the First Defendant has submitted that the Claimants upon checking into Sandals Royal Bahamian executed its ‘On Resort Guest Registration Terms & Conditions’ which state at Clause 7 in summary, that the laws of The Bahamas would be the exclusive choice of law and further that the courts of Bahamas shall be the exclusive venue/forum for any proceedings, claims, or litigation whatsoever.

4 It is undisputed that the Claimants checked into the Sandals Royal Bahamian on April 12, 2015 and on or about April 15, 2015 alleged that the Third Defendant assaulted the First Claimant; which is denied by Sandals Royal Bahamian.

5 The Claimants filed an Amended Complaint on June 12, 2019 in the United States District Court of the Southern District of New York and included Sandal Royal Bahamian as a defendant and claimed damages for the alleged assault. This claim was dismissed on March 4, 2020 because of the lack of personal jurisdiction.

6 I set out below a chronology of the filings by the parties.

Name of Pleading	Date pleading filed	Party filing the pleading
Generally endorsed Writ of Summons	October 14, 2020	Claimants
Memorandum and Notice of Appearance	November 11, 2020	First Defendant
Statement of Claim	December 9, 2020	Claimants
Defence	December 22, 2020	First Defendant
Amended Statement of Claim	March 16, 2021	Claimants
Amended Defence	March 30, 2021	First Defendant
Affidavit of Adrian Whitehead	October 4, 2023	First Defendant
Notice of Application for leave to file Counterclaim	October 5, 2023	First Defendant
Notice of Application to strike out the First Defendant's Defence	October 6, 2023	Claimants

7 The Claimants oppose the said application on the following grounds:

HELD: For the reasons hereinafter set out, I have granted the First Defendant permission to file a Counterclaim in the action and awarded fixed costs to the Claimants.

• (i) The application is premature given that there is a pending application by the Claimants for the strike out of the First Defendant's Defence; it is presently awaiting a decision from another Judge;

• (ii) The application is bad for laches;

• (iii) The application is oppressive, frivolous, vexatious and an abuse of the process of the Court.

8 I will consider each of the issues raised by Counsel for the Claimants separately.

Issue I – Application is premature

9 The Claimants set out a portion of their legal submissions in...